act, the validity of which he is by law afterward estopped from disputing, and which would not be valid if his particular estate continued to exist." (Lyon v. Read, 13 Mees. & Wels. R. 285.) The court in this case declared "that a demise of premises by the reversioner to a stranger, with the consent of the lessee in possession, will not amount to a surrender by operation of law." But this proposition is contrary to some of the authorities above cited, and is not generally acquiesced in. (Vide, further, Bailey v. Delaplaine, 1 Sandford's R. 5.)

It has been held that the mere canceling in fact of a lease is not a surrender of a term thereby granted within the English statute of frauds, which requires such surrender to be by deed or note in writing, or by act or operation of law. Further, that a recital in a second lease, that it was granted in part consideration of the surrender of a prior lease of the same premises, was not a surrender by deed or note in writing of such prior lease, it not purporting in the terms of it to be of itself a surrender or yielding up of the interest. (Roe v. The Archbishop of York, 6 East's R. 86.) And precisely the same doctrine was held in another case, wherein it was said that "the question whether there had been a surrender or not, ought not to be left to depend on loose parol evidence." (Doe v. Thomas, 9 Barn. & Cres. R. 288.) So, also, the same rule was laid down by the supreme court of the state of New York. (Rowan v. Lytle, 11 Wend. R. 616. And vide Jackson v. Gardner, 8 Johns. R. 394.)

But, in a comparatively late case in England, the lessee undertook to surrender the demised premises by delivering to the lessor the key to the house, which the lessor accepted for the purpose of ending the tenancy, and it was held that here was a surrender of the term by act and operation of law; and the rule was laid down that "when there has been a change of possession, with the assent of both parties, it amounts to a surrender of the term by act and operation of law." (Dodd v. Acklow, 4 Man. & Gr. R. 672. And vide Grimman v. Legge, 8 Barn. & Cres. R. 324. Whitehead v. Clifford, 5 Taunt. R. 518.)

In a late case in the supreme court of the state of New York, the subject of surrendering a lease for years by operation of law was considered. The facts were: On the 8th November, 1843, the plaintiff leased a tavern stand of H., B. and P., for the term of eight years, to commence on the 1st of April, 1844. On the

29th of February, 1844, the house was destroyed by fire, and the plaintiff, who had before taken possession of the premises, thereupon abandoned the same, and requested the lessors to cancel the lease, insisting that it was verbally agreed between him and the lessors, before the lease was drawn, that in case of the destruction of the house by fire, the lease was thereby to be terminated. The lessors refused to cancel the lease, and the premises were unoccupied during the first quarter. In July, 1844, the lessors entered into possession of the premises, and B. and P. conveyed their interest therein to H., who erected a new building thereon, and leased the same to the defendant for the term of three years. The plaintiff made no claim to the premises while the new building was being erected, and waited until November, 1846, when he brought an ejectment suit against the defendant to recover the premises. The court held, that the taking possession of the premises by the lessors, the erection of the new building by one of them and the lease thereof to the defendant, must be taken to have been with the plaintiff's assent, and were inconsistent with the continuance of the lease given to plaiutiff, and that consequently the lease to the plaintiff must be regarded as having been surrendered by operation of law long before the commencement of the action. (Wood v. Walbridge, 19 Barb. R. 136.)

Of course the conveyance of the whole estate of the lessee to the lessor, who continues to be the reversioner in fee, will operate as a surrender of the lease. (Shepard v. Spaulding, 4 Metc. R. 416.). But a similar deed to a third person will not have the same effect. (Sperry v. Sperry, 8 N. H. R. 477.) To render a surrender good, the person who surrenders must be in possession, and the person to whom the surrender is made must have a greater estate, immediately in remainder or reversion, in which the estate surrendered may merge. The possession necessary to enable a party to execute a deed of surrender need not be an actual pedis possessio; but there must in all cases be a privity of estate between the surrenderer and surrenderee. (Vide Springstein v. Schermerhorn, 12 Johns. R. 357. Jackson v. Sellick, 8 ib. 262. Jackson v. Howe, 14 ib. 405. Bradstreet v. Clark, 12 Wend. R. 602. Jackson v. Johnson, 5 Cow. R. 97.) This résumé, or summary of the authorities, upon the subject of the surrender of tenancy, is perhaps all that is necessary for the purposes of a treatise upon the action of ejectment, and nothing further will therefore be added.

CHAPTER XVI.

THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT THE STATUTORY POLICY OF THE SEVERAL STATES IN RESPECT TO LANDLORD AND TENANT, AND THE REMEDY BY EJECTMENT IN CASES OF TENANCIES LAWS OF NEW YORK AND THE NEW ENGLAND STATES.

A BRIEF reference to the statutes of the several states applicable to the action of ejectment between landlord and tenant, and to the judicial decisions under those statutes, will close the consideration of this branch of the subject. All that has been said in the previous chapters in respect to the action of ejectment between landlord and tenant, has a general application, and may be applied to all of the states, except what has been explained to be local, or which is rendered inapplicable by statute.

In the state of New York, if any lease be surrendered in order to be renewed, and a new lease be made by the chief landlord, it is provided that such new lease shall be good and valid to all intents and purposes, without a surrender of all or any of the under leases derived out of the original lease so surrendered; and the chief landlord, his lessee, and the holder of such under leases, shall enjoy all their rights and interests in the same manner and to the same extent, as if the original lease had been still continued; and the chief landlord shall have the same remedy by entry upon the demised premises, for the rents and duties reserved by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered. (1 Stat. at Large, 695, § 2.) Notwithstanding the act of May 13, 1846, abolishing distress for rent, the above provision of the statute remains in full force, except so far simply as the remedy by distress is concerned. (Conkey v. Hart, 14 N. Y. R. 22.)

It is further provided by statute, that the attornment of a tenant to a stranger, shall be absolutely void, and shall not, in any wise, affect the possession of his landlord, unless it be made with the tenant, of the landlord. (1 Stat. at Large, 695, 696, 3.)

Under this statute it has been held, that a tenant, whether by his own direct act, or by a collusive judgment, has no right or power

to surrender the possession of his landlord to a stranger, against his landlord's consent. (The People v. Mayor, etc., of New York, 19 How. Pr. R. 289, 293.)

The statute also provides that whenever there is a tenancy at will, or by sufferance created, by the tenant holding over his term, or otherwise, the same may be terminated by the landlord giving one month's notice in writing, to the tenant, requiring him to remove therefrom. Such notice must be served by delivering the same to such tenant, or to some person of proper age, residing on the premises; or if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be conveniently read. At the expiration of one month from the service of such notice, the landlord may re-enter, or maintain ejectment to remove such tenant, without any further or other notice to quit. (1 Stat. at Large, 696, 697, §§ 7, 8, 9.)

At common law a tenancy at sufferance might be determined by mere entry. No demand of possession, or other notice, was necessary. (Jackson v. Parkhurst, 5 Johns. R. 128. Jackson v. McLeod, 12 ib. 182.) This was the law of the state of New York until 1820, when there was an act passed requiring three months' notice to terminate such tenancy, and in 1830 a thirty day notice was substituted, as above stated. The object of this notice, as per judicial authority, is to inform the tenant when his term expires, in other words when he must quit the possession. (Rowan v. Lytle, 11 Wend. R. 617, 619. Livingston v. Tanner, 12 Barb. R. 481,

484, 485.)

When premises are demised for and during the will and pleasure of the lessor, this is held to be strictly a case of tenancy at will, falling within the letter as well as the spirit of the statute; and that the same may be terminated by a month's notice to quit. (Post v. Post, 14 Barb. R. 253.)

The statute also provides that the grantees of any demised lands, the assignees of the lessor of any demise, and the personal representatives of the lessor, grantor or assignee, shall have the same remedies by entry or action, as their grantor or lessor had, or might have had, if the reversion had remained in such lessor or grantor; and the provision is extended as well to grants or leases in fee reserving rents, as to leases for life and for years. (1 Stat. at Large, 698, §§ 23, 25.)

This provision of the statute has been modified by a subsequent statute, which provides that the act to enable grantors of reversions to take advantage of the conditions to be performed by lessees, shall not apply to deeds of conveyance in fee, made before the ninth day of April, 1805, nor to such deeds to be made after the passage of the modifying act. (Laws of 1860, ch. 396.) But notwithstanding this act of 1860, an action of ejectment for nonpayment of rent may be brought by the assignee of the devisee of the grantor, upon a lease made previous to 1805, where the plaintiff had acquired the rights and remedies of the original lessor, previous to the act of 1860. It seems the act of 1860 is to be limited to cases of rights acquired under conveyances prior to 1805 and since 1860, by means of assignments or transfers made or executed since the passage of the act of 1860. (Main v. Green, 32 Barb. R. 448.)

By the statutes of New York, it is also provided, that whenever any half year's rent, or more, shall be in arrear from any tenant to his landlord, and no sufficient distress can be found on the premises to satisfy the rent due, if the landlord has a subsisting right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises; and the service of the declaration therein shall be deemed, and stand instead of, a demand of the rent in arrear, and of a reentry on the demised premises. (2 Stat. at Large, 521, § 30.)

By the statute of May 13, 1846, distress for rent is abolished, but it is provided, that, whenever the right of re-entry is reserved and given to a grantor or lessor in any grant or lease in default of a sufficiency of goods and chattels wherein to distrain for the satisfaction of any rent due, such re-entry may be made at any time after default in the payment of such rent, provided fifteen days' previous notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators or assigns, notwithstanding there may be a sufficiency of goods and chattels on the lands granted or demised for the satisfaction thereof. The said notice. may be served personally on such grantor or lessor, or by leaving it at his dwelling-house on the premises. (Laws of 1846, ch. 274.) The court of appeals have decided that the act of May 13, 1846, abolishing distress for rent, and providing for re-entry under the circumstances named in the act, is constitutional, and applies to